FAQs

FAQs: Custody of Child after Divorce?

Q. What is to be done when neither parents of a child is ready to take up child custody in India after divorce?

A. Interested person can file a petition before the court to give custody under Guardian and Wards Act, who can be the grandparents, relatives or appointed by the court.

Q. When can the father claim’s child custody?

A. Though the father can seek custody as soon as the child is born but generally its not given till the age of 5 yrs.

Q. Is there any minor child custody judgment, which was passed in the favor of father in India?

A. There are many, like Mridangra J Hira Lal Suchak V Neena M Suchak, Kala Aggarwal V Suraj Prakash Aggarwal.

Q. What is the difference between legal custody and physical custody?

A. Having legal custody of children means that you are responsible for making decisions about the important things in their lives. Physical custody refers to where the children live on a regular basis.

Q. What do the courts mean by the best interest of the child?

A. “best interest of the child” means a decision taken to ensure the physical, emotional, intellectual, social and moral development of juvenile or child.”

Q. What is the difference between sole and shared custody?

A. Sole custody means that the child lives with only one parent. Shared legal custody means that both parties have equal input and the right to determine, jointly, all aspects relating to the legal custody of the child.

Q. What is child support?

A. Child support (or child maintenance) is an ongoing, periodic payment made by a parent for the financial benefit of a child (or parent, caregiver, guardian, or state) following the end of a marriage or other relationship.

Q. Explain the child maintenance after divorce in India?

A. The maintenance for a child is independent of the divorce proceedings and is decided as per the needs of the child and the status of the parties.

Q. What is the procedure in Family Court during Child Custody case in India?

A. It is similar to any civil suit, where the petition is filed, reply is filed to petition, cross examination/evidence and final arguments.

Q. What is the meaning of natural guardian in case of child custody?

A. A natural guardian is a child’s mother or father. In a divorce, either or both parents may be granted legal custody with guardian rights. A natural guardian is empowered to make a wide range of decisions for a minor child.

Q. What are the different factors of a parent that determines the custody of a child?

A. The Child’s Preference. The Quality of the Child’s Relationship Between His or Her Parents. The Mental and Physical Health of the Parents. The Wishes of the Parents. Work Obligations of Both Parents.

Q. What is the difference between Guardianship and Custody of a child?

A. Custody describes a parent’s care of a child, whereas legal guardianship is granted to someone who is not the child’s biological parent. In some situations, a child may be under the guardianship of an individual while remaining in the custody of their parents to a degree.

Q. What are Visitation Rights for Fathers?

A. The Visitation Rights for Fathers simply means that the child’s biological father has as much right to spend time with their child as the mother does.

Q. What are the normal rights for Custody to father?

A. Custody to Father : Traditionally at Common law, the father was considered the sole guardian of the person and property of the child. However, Custody of Infants Act, 1839, in the UK – enabled the mother to claim custody over minor children, the rights of the father continued to remain supreme. In India, the Guardians and Wards Act was enacted in 1890 by the colonial state, which continued the legacy of Common law, of the supremacy of the paternal right in guardianship and custody of children. Through series of judicial decisions and amendments, the rights of father in India have been diluted. While the older cases under the GWA unequivocally hold that the father can be deprived of his position as the natural guardian only if he is found to be unfit for guardianship, there are many cases where the courts have been making exceptions to this principle. The widespread favoring of mother has been so relentless that in 2004, the Supreme Court noted “We make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of mother as parent to be always a preferable to the father to retain custody of the child. In our considered opinion, such generalisation in favour of the mother should not have been made.”

Q. Can father take custody of child after divorce?

A. Yes, Father can take custody of child after divorce . As per the laws on Indian child custody, both divorced parents have equal rights over the child even after legal separation. One parent winning custody doesn’t mean the other ceases to be the parent and loses all rights over the child.

Q. How can a father win custody of child after divorce?

A. 1: A father can gain custody of child after divorce in one of two ways: 1. If the parents are able to come to an agreement that is going to occur with the children then a father may document this in a set of consent orders or a parenting arrangement so both divorced parents have equal rights to keep custody of child after divorce.

2 : If the parents are not able to come to an agreement then the matter will go to court and a judge will determine how much time each parent will spend with the child. A father will then need to show that it is in the best interests of the child for the child to spend time with him. Keep in mind that less than 3% of matters end up in court, meaning that there is a good chance it will not be you!